We proceed to some cases in which the court's concern is the interpretation of statutes.
Copyright and Fair Use
18-956 Google LLC v. Oracle America, Inc. (04/05/2021) (supremecourt.gov)
In intellectual property, this session will be remembered for its decision in the procedurally complicated Google v. Oracle. Even that name is resonant: it suggests a legal battle of corporate giants of King Kong versus Godzilla proportions.
I wrote about this case in this blog in October, and I refer those readers who might want background to that discussion. It was obvious by the time the case was argued last fall that there were two ways Google could win: either it could convince the judges that application programming interfaces (APIs) were not copyrightable, OR it could persuade them that this use of the Java API (now owned by Oracle) is a fair use even if the copyright exists.
At argument, Stephen Breyer made a fascinating observation. He compared the Java API to the QWERTY keyboard system. There are other ways to lay out a keyboard. But it would be to give some people or entities a striking windfall to let them now copyright the QWERTY layout, even if there was some historic justification for doing so.
As it happens, Breyer wrote the opinion of the majority. It was a 6 to 2 decision (Thomas and Alito dissenting -- Barrett took no part in these deliberations). And, as Breyer's QWERTY example back in the early days of the term suggested it would, Google won.
Breyer again mentioned the Qwerty keyboard in the course of this opinion but he did so in a very brief aside -- it didn't bear argumentative weight. When he got to the key point, he used legalistic but direct language:
"The fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world. Applying the principles of the Court’s precedents and Congress’ codification of the fair use doctrine to the distinct copyrighted work here, the Court concludes that Google’s copying of the API to re-implement a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, constituted a fair use of that material as a matter of law."
Those who closely follow techie IP issues generally believe SCOTUS did a good job with this one. Indeed, the justices -- not spring chickens -- seem to have done their homework into such matters as "what's an API?" with some diligence, and they came out on the right side. So, whichever Monster you prefer. Personally, as a believer in Mammalian Solidarity, I cheer on Kong in such match-ups. More seriously, as an opponent of statism, I want a broad commons in matters intellectual. The idea of using state power to demand that someone else stop using one of 'my' ideas is as repugnant as, say, the idea of using state power to demand that someone else stop using a recreational drug I wouldn't.
Likewise, using the power of a formally private athletic organization, which has backing from nation states around the globe, to punish an athlete who used a recreational, non-performance-enhancing drug ... but I digress.
Patent and Estoppel
The second biggest intellectual property case of the term came near the end. It dealt not with copyright but with patent, and in this decision, Minerva Surgical Inc. v. Hologic Inc. the court through Justice Kagan seems to have retained but limited the estoppel that has generally acted against inventors.
Consider the stereotypical case that led to the adoption of the rule of "assignor estoppel" in patent law. Inventor comes up with new mousetrap (with, let us say, gold-coated springs). He then gets a patent on the mousetrap. Not wanting to be bogged down in the mousetrap-manufacturing business, he assigns the patent to an established home improvement company for a nice payday, then goes on to try to invent something else.
Some time has passed. The home-improvement company is making a mint off of the gold-coated spring mousetrap. The return is so great, the payment to the assignor seems a mere pittance. Our inventor gets unhappy. Now he does get into the mousetrap business, competing with the people to whom he had promised a monopoly.
In the subsequent litigation, inventor makes the claim, "the idea is not patentable. There is nothing useful or even novel about gold plating a spring. I never should have gotten a patent for it, and the patent they are relying on is invalid."
THIS is a case for assignor estoppel. An inventor will be estopped from bad-mouthing a right he has already sold in this way. On its face it sounds reasonable. But then we come to instances like this.
The patent at issue involves the treatment of abnormal uterine bleeding. (Finally! SCOTUS has to pass judgment on something involving the female anatomy and it isn't abortion related.) Csaba Truckai filed a patent application for the "NovaSure" system and later assigned the application to Novacept, Inc. Novacept was later acquired by Hologic, Inc. In 2008, Truckai founded petitioner Minerva Surgical, Inc. Minerva went into the business of selling what Truckai plausibly describes as an improvement upon NovaSure. Litigation ensued.
The key to understanding these decisions is the following statement from the majority opinion: "Although the assignor cannot assert in an infringement suit that the patent is invalid, ... he can argue about how to construe the patent’s claims." The majority says that Minerva and its founder, Tuckai, was not claiming to have sold Novacept/Hologic something worthless. He was merely claiming to have sold a more limited monopoly right than they thought they had bought. And on that point, he can properly be heard. So the matter is remanded for further proceedings consistent with that instruction.
The distinction seems a matter of common sense, but much reaction to the distinction treats the majority as significantly cutting back on the extent of an established principle.
The decision is 5-3-1. I count Alito's dissent (as the 1) as a separate matter from that of the other dissenters. Alito briefly criticized both the majority and the "principal dissent" for failure to grapple properly with the precedents. He would dismiss the appeal as "improvidently granted," because it appears the Court wasn't ready to deal with it. Yes, it is a grumpy little opinion.
The principal dissent is by Justice Barrett, joined by Thomas and Gorsuch. I won't go into its arguments: the noteworthy fact here is that this doesn't seem really to BE a dissent in terms of the result. It is surely a dissent in terms of reasoning. Kagan would trim back the doctrine but keep it, and remand the case so that the inventor's arguments can be heard. Barrett would abandon the doctrine entirely, so that presumably any inventor's claims could be heard, even in the stereotypical mousetrap case described above. So presumably she would remand too. Only Alito would NOT remand. This was really an 8 - 1 case.
Again, the side seeking a broader intellectual commons prevailed. I'm happy.
Violent Felony and Sentencing
Borden v. United States is one of many cases the court takes these days that reflect the endless drive of our ruling class to put ever larger chunks of the US population behind bars for ever longer periods of time.
Sometimes there is a bump in the road of that endless drive, and I am always glad to mark the fact. The Borden decision is such a bump. Yeah!
Under the Armed Career Criminal Act (ACCA), anyone convicted of a felony in the possession of a firearm will get a minimum 15 year sentence if he already has three convictions for a "violent felony." the question is: for purposes of this statute, what counts as a violent felony?
The statute has that covered: a violent felony is one that "has as an element the use, attempted use, or threatened use of physical force against the person of another." That sounds like it involves intent, although it doesn't actually say "intent."
The case at issue was, whether, in the sentencing of Charles Borden Jr., a prior conviction of "reckless aggravated assault" under the laws of Tennessee. The whole point of the term "reckless" in the common law tradition is that it generally describes an action that predictably has bad consequences, but an action taken just short of intentionally. A fractured court ended up holding that Borden did not have the three predicate offenses.
Those Two Final 6-3 Cases are very different
I'll be very brief here, in discussing two further cases today. So many others have already written about these.
The court, issuing the final opinions of the term, on Thursday, July 1, reached two decisions by the same 6-3 votes. They both have consequences for how elections are done in the US. Further, they both naturally lend themselves to an obvious partisan reading. The six nominees of Republican Presidents voted the one way, the three nominees of Clinton or Obama voted the other.
I refer of course to Brnovich v. Democratic National Committee, on the one hand, a major voting-rights case out of Arizona, and to Americans for Prosperity Foundation v. Bonta, on the other.
It is fair to see Brnovich in left-right terms. The right is historically the side of any debate that supports a narrower circle of suffrage, the left is the side that supports a broader one. The 6-3 splits that follow this pattern this session have been (blessedly) rare, but this is one of them.
In Brnovich the majority seems to be taking a cue from its treatment of Roe v. Wade in recent years. It won't strike the article of the Voting Rights Act in a single stroke but it will peck away at it, using the language of "burdens" to do so. The gist of it is that the state of Arizona cannot excessively burden the right to vote, but it can attach "ordinary burdens," and the rules in question meet that description. Sound familiar?
But I don't know that it is so fair to see APF the same way. The APF case involved California's requirement that charities and nonprofits operating in that state should provide the state Attorney General's office with the names and addresses of their largest donors. The AG might pinky swear to keep them secret, but such secrets can and do leak. One might quite sensibly regard any information one is required to send to a government office as information one is required to share with the whole world.
SCOTUS has now struck this requirement on first-amendment grounds. (Ah, you say -- then why are we discussing it in the statutory-interpretation segment of our discussion? I just didn't want to separate APF from Brnovich. Especially since my point is that they are distinct.).
SCOTUS struck this on first-amendment grounds at the urging of a lot of institutions -- look at the list of amici briefs -- that are considered left of center and that believe devoutly in the right of free speech. So that the heckler's won't impose their veto, speech is more freely given if it can be given in anonymity.
As the ACLU's amicus brief says: "In general, the compelled disclosure of associational information to the public dramatically increases the risk of private retaliation against the members and supporters of potentially controversial groups, is more likely to chill the exercise of associational freedoms, and is therefore subject to a more stringent form of exacting scrutiny than the compelled disclosure of information to the government on a confidential basis. [Further], in light of California’s record of inadvertently publicizing these sensitive documents, its demand should be treated as a de facto public disclosure requirement."
Another amici in this case is from the Council on Islamic-American Relations. It, too, argued for striking the law -- and I'm guessing CIAR is seldom a very welcome ally of the Trump base.
But it says this: "CAIR’s experiences with the federal terrorist watchlist emphasizes the need for robust legal protections for associational claims."
Indeed it might.
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